Hunter v. Hankinson

• Decision Date: 12 October 1925
• Docket Number: 24935
• Citation: 106 So. 514,141 Miss. 279
• Court: Mississippi Supreme Court
• Parties: HUNTER v. HANKINSON et al. [*]

106 So. 514

141 Miss. 279

HUNTER v. HANKINSON et al. ^[*]

No. 24935

Supreme Court of Mississippi

October 12, 1925

Division A

On Suggestion Of Error January 4, 1926.

1 EQUITY. Bill alleging one portion of land to be claimed by one defendant, another by other defendant, and remainder by both, is not multifarious, if complainant's title against each of defendants, as to land claimed by both, is derived from same source.

A bill against two defendants to cancel their claim to land claimed by the complainant, in which one portion of the land is alleged to be claimed by one of the defendants, another by the other defendant, and the remainder by both, is not multifarious, if the title which the complainant asserts against each of the defendants, as to the land claimed by both of them, is derived from the same source.

ON SUGGESTION OF ERROR.

2. INJUNCTION. Not to be granted against completed act, in absence of allegation of danger of repetition. Injunction should not be granted where act complained of has been completed, there being no allegation of threat or danger of its being repeated.

3 INJUNCTION. Solicitor's fee not allowed on dissolution as incident to final hearing. No solicitor's fee is properly allowed defendant for dissolution of injunction, when dissolution is incident to and component part of the decree on final hearing of the cause; the statute not allowing fee for defending suit.

APPEAL from chancery court of Warren county, HON. E. N. THOMAS Chancellor.

Suit by C. W. Hunter against W. S. Hankinson and another to correct a deed and cancel defendant's claims to land, for an injunction, and for accounting. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed in part, in part reversed and decree rendered, and in part reversed and remanded.

Reversed and remanded. Sustained in part, and overruled in part.

Watson & Jayne, for appellant.

The sole assignment of error is that the lower court erred in sustaining the demurrer, dismissing the bill, dissolving the injunction and decreeing damages. Appellant will discuss only such grounds of demurrer as to him seem requisite.

That there was no equity on the face of the bill. The bill of complaint was one to quiet title and the allegations thereof were sufficient to sustain the bill. Sections 306 and 307, Hemingway's Code, (sections 549 and 550, Code of 1906); Cook v. Friley, 61 Miss. 1. There was no complete and adequate remedy at law.

The law court has no jurisdiction to quiet titles. This jurisdiction has always belonged to the equity court. 4 Pom. Eq. Jur. (4 Ed.), par. 1398. There has been no departure from the doctrine of Cook v. Friley, either by statute or judicial decision, except the provisions of the Code requiring complainants to deraign title. Section 308, Hemingway's Code, (section 551, Code of 1906).

That there was not a sufficient deraignment of title in appellant. (a) The bill alleges title in appellant based on forty years of actual, continuous, adverse possession. This allegation of itself was sufficient deraignment of title: (1) As against the appellees under the Mississippi ten-years statute of limitations based on adverse possession. Section 2458, Hemingway's Code, (section 3094, Code of 1906) and annotations thereunder; Bynum v. Stinson, 81 Miss. 25, 32 So. 910; Alexander v. Pendleton, 8 Cranch 462, 3 L.Ed. 624; Sharon v. Tucker, 144 U.S. 538, 36 L.Ed. 532. (2) As against the United States under the doctrine of presumption of grant. Caruth v. Gillespie, 109 Miss. 679, 6 So. 927; U. S. v. Chavez, 175 U.S. 209, 44 L.Ed. 255; Nixon v. Carco, 28 Miss. 414; Grand Gulf Ry. Co. v. Bryan, 8 S. C. M. 279; Stevenson v. McReary, 12 S. & M. 950, 2 C. J., page 288 et seq.

That the bill of complaint was multifarious. It alleges that each of the appellees was claiming to own certain portions of the land described in the bill of complaint; to-wit: that lying south and west of the old road and north of the Hankinson-Wade line; that is to say, that tract of land bounded by the two lines last mentioned and the Mississippi River. Under this allegation, there was one complainant suing two defendants who were each claiming the same tract of land. So long as this was true as to one portion of the land, the bill was not multifarious. This view of appellant is supported by the Mississippi cases. The rule laid down in Roberts v. Burwell, 78 So. 359, as to when a cause of action sued on as against several defendants is such as to make the bill multifarious, is aplicable here. See, also, Robertson v. Monroe County, 79 So. 187, 118 Miss. 541, and Middleton v. Howell, 90 So. 725.

If the bill was multifarious, the court should not have dismissed it, and committed error in so doing. Section 358, Hemingway's Code, (section 598, Code of 1906); Reese v. Salmon, 99 So. 382; Roberts v. Burrell, 78 So. 357. Inasmuch as the other grounds of demurrer do not go to the whole bill, they will not be considered. Jones v. Jones, 55 So. 361. A general demurrer must be sustained or overruled in its entirety. Railroad Co. v. Railroad Co., 65 So. 508.

The fact that several distinct and unconnected matters of equity were alleged against appellee, M. E. Hamer, did not make the bill of complaint multifarious. This is allowed by the Mississippi Statute. Section 358, Hemingway's Code (section 598, Code of 1906); and annotations thereunder; Dukate v. Adams, 101 Miss. 433, 58 So. 475; N. O. Ry. Co. v. N. O. G. N. Ry. Co., 107 Miss. 453, 65 So. 508.

Nature of doctrine of multifariousness. There is no absolute rule whereby the question of multifariousness is to be tested. It is usually based on the question of convenience. If the court can see its way clear to make a decree on a bill which joins that which might otherwise be an independent cause of action, it will not consider the bill multifarious. This is the substance of the holdings of the courts, some of which decisions are hereunder cited. Collins v. Leary, 74 N.J.Eq. 852, 71 A. 603; Hudson v. Wood, 105 N.E. 343, 263 Ill. 376; Stevens v. Collins, 249 Ill. 224, 94 N.E. 664; Barney v. Lathan, 103 U.S. 205.

Rule on bills to quiet title. So long as there is unity of title in the complainant with regard to the tract of land, the title to which is sought to be quited, all claimants thereto may be made parties defendant, although their claim may spring from different sources. Hyman v. Wheeler, 33 F. 829. The bill of complaint in this cause is not multifarious because it prayed for the quieting of title to all of the lands except those conveyed in the Hamer deed, and because it also prayed for the reformation of that deed because of the mistake of the scrivener made therein. Wood v. Holliday (Ala.), 88 So. 551.

Dabney & Dabney and J. B. Dabney, for appellees.

1. The injunction. Has complainant shown any right to an injunction against Mr. Hankinson? With what is this defendant charged in the bill? (1) With claiming all that part of the land lying north of the Hankinson line. He is not enjoined from making this claim. (2) With wrongfully cutting and removing timber and he is left to follow his own inclinations in that regard and cut all of the remaining timber, if he so disposes. (3) ". . . the defendant, W. S. Hankinson, and his agents and employees have disregarded said fences and gone through same for the purpose of cutting, hauling and removing said timber from said disputed lands as aforesaid."

This is the charge and the only charge forming the basis for the injunction. The writ of injunction is, we submit, a drastic remedy, and must be supported by a proper foundation. It is not stated in the bill when he disregarded these fences or how he disregarded them; whether he broke them down or merely went through gates that might be therein; whether he did what he did one or a thousand times. It is true that complainant states that he is without adequate remedy at law and that the injury is irreparable--but what injury? That of cutting and removing the timber from his own land, now claimed by complainant, not that of disregarding and going through said fences on complainant's land. If the complainant is so cock sure that he owns the land north of the Hankinson line, why did he not enjoin Mr. Hankinson from cutting the timber on same?

The alleged injury to complainant is entirely completed. There is not one word in the bill that alleges that Mr. Hankinson is threatening to continue his disregard of the fences and his going through same for the purpose of cutting and removing the timber. There must be at least a reasonable probability that the injury will be done if no injunction is granted, and not a mere fear of apprehension. 22 Cyc. 757-8.

Since equity will not attempt to do a vain thing, it will not by an injunction attempt to prevent an injury that has already been sustained or to prevent the doing of an act that has already been performed, especially where there is no showing that such action is being continued or repeated, or that defendant is threatening or intending to repeat the injury. 22 Cyc. 759-762.

II. Multifariousness of bill. If this bill is not multifarious, we can hardly conceive of one that is. It is even worse than that in Columbus Ins. & Banking Co. et al v. Humphries et al., 64 Miss. 258, that met the severe condemnation of Judge CAMPBELL. It is held in that case that our statute permitting the uniting in one bill of several distinct and unconnected matters of equity against the same defendants does not permit the connecting in one bill distinct and unconnected equities against disconnected defendants. For other cases in which our own court has held bills to be multifarious, see Nelms v. Brooks, 105 Miss. 74, and Guess v. Strahan, 106 Miss. 1.

As stated by counsel in his brief,...